The constitutionality of Alaska's statute prohibiting possession of
marijuana is put in issue in this case. Petitioner Ravin was arrested in
1972 and charged with violating AS 17.12.010. Before trial Ravin attacked
the constitutionality of AS 17.12.010 by a motion to dismiss in which he
asserted that the State had violated his right of privacy under both the
federal and Alaska constitutions, and further violated the equal protection
provisions of the state and federal constitutions....

Here Ravin raises two basic claims: first, that there is no legitimate
state interest in prohibiting possession of marijuana by adults for personal
use, in view of the right to privacy; and secondly, that the statutory
classification of marijuana as a dangerous drug, while use of alcohol and
tobacco is not prohibited, denies him due process and equal protection
of law.

We first address petitioner's contentions that his constitutionally
protected right to privacy compels the conclusion that the State of Alaska
is prohibited from penalizing the private possession and use of marijuana.
Ravin's basic thesis is that there exists under the federal and Alaska
constitutions a fundamental right to privacy, the scope of which is sufficiently
broad to encompass and protect the possession of marijuana for personal
use. Given this fundamental constitutional right, the State would then
have the burden of demonstrating a compelling state interest in prohibiting
possession of marijuana. In light of these controlling principles, petitioner
argues that the evidence submitted below by both sides demonstrates that
marijuana is a relatively innocuous substance, at least as compared with
other less-restricted substances, and that nothing even approaching a compelling
state interest was proven by the State.

Ravin's arguments necessitate a close examination of the contours of
the asserted right to privacy and the scope of this court's review of the
legislature's determination to criminalize possession of marijuana.

We have previously stated the tests to be applied when a claim is made
that state action encroaches upon an individual's constitutional rights.
In Breese v. Smith (Alaska 1972), we had before us a school hair
length regulation which encroached on what we determined to be the individual's
fundamental right to determine his own personal appearance. There we stated:

Once a fundamental right under the constitution of Alaska has
been shown to be involved and it has been further shown that this constitutionally
protected right has been impaired by governmental action, then the government
must come forward and meet its substantial burden of establishing that
the abridgement in question was justified by a compelling governmental
interest.

This standard is familiar federal law as well. As stated by the United
States Supreme Court: Where there is a significant encroachment upon personal
liberty, the State may prevail only upon showing a subordinating interest
which is compelling.
The law must be shown "necessary, and not merely rationally related,
to the accomplishment of a permissible state policy."

When, on the other hand, governmental action interferes with an individual's
freedom in an area which is not characterized as fundamental, a less stringent
test is ordinarily applied. In such cases our task is to determine whether
the legislative enactment has a reasonable relationship to a legitimate
governmental purpose. Under this latter test, which is sometimes referred
to as the "rational basis" test, the State need only demonstrate the existence
of facts which can serve as a rational basis for belief that the measure
would properly serve the public interest....

This court has previously applied a test different from the rigid two-tier
formulation to state regulations. It is appropriate in this case to resolve
Ravin's privacy claims by determining whether there is a proper governmental
interest in imposing restrictions on marijuana use and whether the means
chosen bear a substantial relationship to the legislative purpose. If governmental
restrictions interfere with the individual's right to privacy, we will
require that the relationship between means and ends be not merely reasonable
but close and substantial.

Thus, our undertaking is two-fold: we must first determine the nature
of Ravin's rights, if any, abridged by AS 17.12.010, and, if any rights
have been infringed upon, then resolve the further question as to whether
the statutory impingement is justified.

As we have mentioned, Ravin's argument that he has a fundamental right
to possess marijuana for personal use rests on both federal and state law,
and centers on what may broadly be called the right to privacy. This "right"
is increasingly the subject of litigation and commentary and is still a
developing legal concept.

In Ravin's view, the right to privacy involved
here is an autonomous right which gains special significance when its situs
is found in a specially protected area, such as the home. Ravin
begins his privacy argument by citation of and reliance upon Griswold
v. Connecticut, in which the Supreme Court of the United States struck
down as unconstitutional a state statute effectively barring the dispensation
of birth control information to married persons. Writing for five members
of the Court, Mr. Justice Douglas noted that rights protected by the Constitution
are not limited to those specifically enumerated in the Constitution. In
order to secure the enumerated rights, certain peripheral rights
must be recognized. In other words, the "specific guarantees in the Bill
of Rights have penumbras, formed by emanations from those guarantees that
help give them life and substance." Certain of these penumbral rights create
"zones of privacy", for example, First Amendment rights of association,
Third and Fourth Amendment rights pertaining to the security of the home,
and the Fifth Amendment right against self-incrimination. The Supreme Court
of the United States then proceeded to find a right to privacy in marriage
which antedates the Bill of Rights and yet lies within the zone of privacy
created by several fundamental constitutional guarantees. It was left unclear
whether this particular right to privacy exists independently, or comes
into being only because of its connection with fundamental enumerated rights.

The next important Supreme Court opinion regarding privacy is Stanley
v. Georgia, in which a state conviction for possession of obscene matter
was overturned as violative of the First and Fourteenth Amendments. The
Supreme Court had previously held that obscenity is not protected by the
First Amendment. But in Stanley the Count made a distinction between
commercial distribution of obscene matter and the private enjoyment of
it at home. The Supreme Court concluded that the First Amendment
means a state has no business telling a man, sitting alone in his own home,
what books he may read or what films he may watch. The Court took care
to limit its holding to mere possession of obscene materials by the individual
in his own home. It noted that it did not intend to restrict the power
of the state or federal government to make illegal the possession of items
such as narcotics, firearms, or stolen goods.

The Stanley holding was subsequently refined
by a series of cases handed down in 1973. In Paris Adult Theatre I v.
Slaton, the Supreme Court rejected the claim of a theater owner that
his showing of allegedly obscene films was protected by Stanley
because his films were shown only to consenting adults. The Court explicitly
rejected the comparison of a theater to a home and found a legitimate state
interest in regulating the use of obscene matter in local commerce and
places of public accommodation. It apparently found no fundamental right
involved in viewing obscene matter under these conditions, for it noted
that the right to privacy guaranteed by the Fourteenth Amendment
extends only to fundamental rights. The protection offered by Stanley,
the Supreme Court stated, was restricted to the home, and it explicitly
refused to say that all activities occurring between consenting adults
were beyond the reach of the government.

These Supreme Court cases indicate to us that
the federal right to privacy arises only in connection with other fundamental
rights, such as the grouping of rights which involve the home. And even
in connection with the penumbra of home-related rights, the right of privacy
in the sense of immunity from prosecution is absolute only when the private
activity will not endanger or harm the general public....

Assuming this court were to continue to utilize the fundamental right-compelling
state interest test in resolving privacy issues under article I, section
22 of Alaska's constitution, we would conclude that there is not a fundamental
constitutional right to possess or ingest marijuana in Alaska. For in our
view, the right to privacy amendment to the Alaska Constitution cannot
be read so as to make the possession or ingestion of marijuana itself a
fundamental right. Nor can we conclude that such a fundamental right is
shown by virtue of the analysis we employed in Breese. In that case,
the student's traditional liberty pertaining to autonomy in personal appearance
was threatened in such a way that his constitutionally guaranteed right
to an education was jeopardized. Hairstyle, as emphasized in Breese,
is a highly personal matter involving the individual and his body. In this
sense this aspect of liberty-privacy is akin to the significantly personal
areas at stake in Griswold and Eisenstadt v. Baird. Few would
believe they have been deprived of something of critical importance if
deprived of marijuana, though they would if stripped of control over their
personal appearance. And, as mentioned previously, a discrete federal right
of privacy separate from the penumbras of specifically enumerated constitutional
rights has not as yet been articulated by the Supreme Court of the United
States. Therefore, if we were employing our former test, we would hold
that there is no fundamental right, either under the Alaska or federal
constitutions, either to possess or ingest marijuana.

The foregoing does not complete our analysis of the right to privacy
issues. For in Gray we stated that the right of privacy amendment
of the Alaska Constitution "clearly it shields the ingestion of food, beverages
or other substances," but that this right may be held to be subordinate
to public health and welfare measures. Thus, Ravin's right to privacy contentions
are not susceptible to disposition solely in terms of answering the question
whether there is a general fundamental constitutional right to possess
or smoke marijuana.

This leads us to a more detailed examination
of the right to privacy and the relevancy of where the right is exercised.
At one end of the scale of the scope of the right to privacy is possession
or ingestion in the individual's home. If there is any area of human activity
to which a right to privacy pertains more than any other, it is the home.
The importance of the home has been amply demonstrated in constitutional
law. Among the enumerated rights in the federal Bill of Rights are the
guarantee against quartering of troops in a private house in peacetime
(Third Amendment) and the right to be "secure in their . . . . houses .
. . . against unreasonable searches and seizures . . . ." (Fourth Amendment).
The First Amendment has been held to protect the right to "privacy and
freedom of association in the home." The Fifth Amendment has been
described as providing protection against all governmental invasions "of
the sanctity of a man's home and the privacies of life." The protection
of the right to receive birth control information in Griswold was
predicated on the sanctity of the marriage relationship and the harm to
this fundamental area of privacy if police were allowed to "search the
sacred precincts of marital bedrooms." And in Stanley v. Georgia,
the Court emphasized the home as the situs of protected "private activities."
The right to receive information and ideas was found in Stanley
to take on an added dimension precisely because it was a prosecution for
possession in the home: "For also fundamental is the right to be free,
except in very limited circumstances, from unwanted governmental intrusions
into one's privacy." In a later case, the Supreme Court noted that Stanley
was not based on the notion that the obscene matter was itself protected
by a constitutional penumbra of privacy, but rather was a "reaffirmation
that 'a man's home is his castle.'" At the same time the Court noted, "the
Constitution extends special safeguards to the privacy of the home, just
as it protects other special privacy rights such as those of marriage,
procreation, motherhood, child rearing, and education." And as the Supreme
Court pointed out, there exists a "myriad" of activities which may be lawfully
conducted within the privacy and confines of the home, but may be prohibited
in public.

In Alaska we have also recognized the distinctive
nature of the home as a place where the individual's privacy receives special
protection. This court has consistently recognized that the home is constitutionally
protected from unreasonable searches and seizures, reasoning that the home
itself retains a protected status under the Fourth Amendment and Alaska's
constitution distinct from that of the occupant's person. The privacy
amendment to the Alaska Constitution was intended to give recognition and
protection to the home. Such a reading is consonant with the character
of life in Alaska. Our territory and now state has traditionally been the
home of people who prize their individuality and who have chosen to settle
or to continue living here in order to achieve a measure of control over
their own lifestyles which is now virtually unattainable in many of our
sister states.

The home, then, carries with it associations
and meanings which make it particularly important as the situs of privacy.
Privacy in the home is a fundamental right, under both the federal and
Alaska constitutions. We do not mean by this that a person may do anything
at anytime as long as the activity takes place within a person's home.
There are two important limitations on this facet of the right to privacy.
First, we agree with the Supreme Court of the United States, which has
strictly limited the Stanley guarantee to possession for purely
private, noncommercial use in the home. And secondly, we think this right
must yield when it interferes in a serious manner with the health, safety,
rights and privileges of others or with the public welfare. No one has
an absolute right to do things in the privacy of his own home which will
affect himself or others adversely. Indeed, one aspect of a private matter
is that it is private, that is, that it does not adversely affect
persons beyond the actor, and hence is none of their business. When a matter
does affect the public, directly or indirectly, it loses its wholly private
character, and can be made to yield when an appropriate public need
is demonstrated.

Thus, we conclude that citizens of the State
of Alaska have a basic right to privacy in their homes under Alaska's constitution.
This right to privacy would encompass the possession and ingestion of substances
such as marijuana in a purely personal, non-commercial context in the home
unless the state can meet its substantial burden and show that proscription
of possession of marijuana in the home is supportable by achievement of
a legitimate state interest.

This leads us to the second facet of our inquiry, namely, whether the
State has demonstrated sufficient justification for the prohibition of
possession of marijuana in general in the interest of public welfare; and
further, whether the State has met the greater burden of showing a close
and substantial relationship between the public welfare and control of
ingestion or possession of marijuana in the home for personal use.

The evidence which was presented at the hearing before the district
court consisted primarily of several expert witnesses familiar with various
medical and social aspects of marijuana use. Numerous written reports and
books were also introduced into evidence....

The short-term physiological effects are relatively undisputed. An immediate
slight increase in the pulse, decrease in salivation, and a slight reddening
of the eyes are usually noted. There is also impairment of psychomotor
control. These effects generally end within two to three hours of the end
of smoking.

Long-term physiological effects raise more controversy among the experts.
The National Commission on Marihuana and Drug Abuse reported that among
users "no significant physical, biochemical, or mental abnormalities could
be attributed solely to their marijuana smoking." Certain researchers have
pointed to possible deleterious effects on the body's immune defenses,
on the chromosomal structures of users, and on testosterone levels in the
body....It should be noted that most of the damage suggested by these studies
comes in the context of intensive use of concentrated forms of THC. It
appears that the use of marijuana, as it is presently used in the United
States today, does not constitute a public health problem of any significant
dimensions. It is, for instance, far more innocuous in terms of physiological
and social damage than alcohol or tobacco. But the studies suggesting dangers
in intensive cannabis use do raise valid doubts which cannot be dismissed
or discounted....

The immediate psychological effects of marijuana are typically a mild
euporia and a relaxed feeling of well-being. The user may feel a heightened
sensitivity to taste and to visual and aural sensations, and his perception
of time intervals may be distorted. A desire to become high can lead to
a greater high; fear of becoming high or general nervousness can cause
the user to fail to experience any high at all. In rare cases, excessive
nervousness or fear of the drug can even precipitate a panic reaction.
Occasionally a user will experience a negative reaction such as anxiety
or depression, particularly when he takes in more of the substance than
needed to achieve the desired high.

Additional short-term effects are an impairment of immediate-past-memory
facility and impairment in performing psychomotor tasks. Experienced users
seem less impaired in this regard than naive users.

In extremely rare instances, use of marijuana has been known to precipitate
psychotic episodes; however, the consensus of the experts seems to be that
the potential for precipitating psychotic episodes exists only for a limited
number of prepsychotic persons who could be pushed into psychosis by any
number of drug or nondrug-related influences.

There is considerable debate as to the long-term effects of marijuana
on mental functioning. Certain researchers cite evidence of an "amotivational
syndrome" among long-term heavy cannabis users....

We glean from these cases the general proposition that the authority
of the state to exert control over the individual extends only to activities
of the individual which affect others or the public at large as it relates
to matters of public health or safety, or to provide for the general welfare.
We believe this tenet to be basic to a free society. The state cannot impose
its own notions of morality, propriety, or fashion on individuals when
the public has no legitimate interest in the affairs of those individuals.
The right of the individual to do as he pleases is not absolute, of course:
it can be made to yield when it begins to infringe on the rights and welfare
of others.

Further, the authority of the state to control the activities of its
citizens is not limited to activities which have a present and immediate
impact on the public health or welfare. It is conceivable, for example,
that a drug could so seriously develop in its user a withdrawal or amotivational
syndrome, that widespread use of the drug could significantly debilitate
the fabric of our society. Faced with a substantial possibility of such
a result, the state could take measures to combat the possibility. The
state is under no obligation to allow otherwise "private" activity which
will result in numbers of people becoming public charges or otherwise burdening
the public welfare. But we do not find that such a situation exists today
regarding marijuana. It appears that effects of marijuana on the individual
are not serious enough to justify widespread concern, at least as compared
with the far more dangerous effects of alcohol, barbiturates and amphetamines....

Thus we conclude that no adequate justification
for the state's intrusion into the citizen's right to privacy by its prohibition
of possession of marijuana by an adult for personal consumption in the
home has been shown. The privacy of the individual's home cannot be breached
absent a persuasive showing of a close and substantial relationship of
the intrusion to a legitimate governmental interest. Here, mere scientific
doubts will not suffice. The state must demonstrate a need based on proof
that the public health or welfare will in fact suffer if the controls are
not applied.

The state has a legitimate concern with avoiding the spread of marijuana
use to adolescents who may not be equipped with the maturity to handle
the experience prudently, as well as a legitimate concern with the problem
of driving under the influence of marijuana. Yet these interests are insufficient
to justify intrusions into the rights of adults in the privacy of their
own homes. Further, neither the federal or Alaska constitution affords
protection for the buying or selling of marijuana, nor absolute protection
for its use or possession in public. Possession at home of amounts of marijuana
indicative of intent to sell rather than possession for personal use is
likewise unprotected.

In view of our holding that possession of marijuana by adults at home
for personal use is constitutionally protected, we wish to make clear that
we do not mean to condone the use of marijuana. The experts who testified
below, including petitioner's witnesses, were unanimously opposed to the
use of any psychoactive drugs. We agree completely. It is the responsibility
of every individual to consider carefully the ramifications for himself
and for those around him of using such substances. With the freedom which
our society offers to each of us to order our lives as we see fit goes
the duty to live responsibly, for our own sakes and for society's. This
result can best be achieved, we believe, without the use of psychoactive
substances.

The record does not disclose any facts as to the situs of Ravin's arrest
and his alleged drug possession. Under these circumstances, we hold that
the matter must be remanded to the district court for the purpose of developing
the facts concerning Ravin's arrest and circumstances of his possession
of marijuana. Once this is accomplished, the district court is to consider
Ravin's motion to dismiss in conformity with this opinion.

BOOCHEVER, Justice (concurring, with whom CONNOR, Justice, joins).

Because of the importance of the issues discussed in this case and the
possibility that portions of the opinion may be construed as substantially
circumscribing the Alaska Constitutional right to privacy, I find it necessary
to file this concurrence. By its reliance on certain United States Supreme
Court cases and the manner in which some of the conclusions are set forth,
the opinion may be read as limiting the right of privacy principally to
protection of activities engaged in within the confines of the home. The
opinion relies chiefly on United States Supreme Court precedent, although
there is no Federal Constitutional provision corresponding to art. 1, §
22 of the Alaska Constitution which specifies that "the right of the people
to privacy is recognized and shall not be infringed". While Federal cases
defining the right of privacy derived from other provisions of the United
States Constitution are of assistance in determining the perimeters of
our constitutional right to privacy, we are construing the separate Alaska
provision. Even when Alaska Constitutional provisions are closely akin
to those of the Federal Constitution, we have stated: We need not stand
by idly and passively, waiting for constitutional direction from the highest
court of the land. Instead, we should be moving concurrently to develop
and expound the principles embedded in our constitutional law.

Although the majority opinion emphasizes the right of privacy in the
home, it recognizes that analysis of the Federal decisions does not
indicate that the right of privacy is relegated to the home....

Since the citizens of Alaska, with their strong emphasis on individual
liberty, enacted an amendment to the Alaska Constitution expressly providing
for a right to privacy not found in the United States Constitution,
it can only be concluded that that right is broader in scope than that
of the Federal Constitution. As such, it includes not only activities within
the home and values associated with the home, but also the right to be
left alone and to do as one pleases as long as the activity does not infringe
on the rights of others. Thus, the decision whether to ingest food, beverages
or other substances comes within the purview of that right to privacy.

The right to privacy, however, is not monolithic. For example, the right
to decide whether to eat strawberry ice cream cannot be placed on the same
level as that of deciding whether to bear a child. Moreover, the importance
of the right may properly be related to the place where it is exercised,
for example, at the home or in the market place.

Having discussed generally the contours of what I perceive to be the
right to privacy under the Alaska Constitution, I shall turn briefly to
the test utilized by the court in determining infringements of that right.

I agree with the majority's departure from that test in areas where
we have discretion to depart from standards established by the United States
Supreme Court. With reference to laws challenged as invading the Alaskan
right of privacy, I would apply a single flexible test dependent first
upon the importance of the right involved. Based on the nature of that
right, a greater or lesser burden would be placed on the state to show
the relationship of the intrusion to a legitimate governmental interest.
I agree with the majority opinion that interference with rights of privacy
within one's home requires a very high level of justification.....

CONNOR, Justice (concurring).

The decision today properly leaves unanswered the question of how far
the right to privacy, in connection with the possession of marijuana, extends
outside the home....

The record in the case before us does not contain facts about the particular
circumstances in which appellant possessed marijuana. Accordingly, we must
remand the case for further elucidation of the facts.

It is certain that the right to privacy does not vanish when one leaves
the home. There are certain aspects of personal autonomy which one carries
with him even when he ventures out of the home, though the claim to privacy
diminishes in proportion to the extent that one's person and one's activities
impinge upon other persons. But, in order to trace the contours of the
right to privacy, it will be necessary to engage in a critical analysis
of the facts of each case which presents itself for decision. Only in this
fashion can the right to privacy, outside the home, be determined on a
reasoned, coherent basis so as to furnish the courts and the public with
reliable rules of action. Much definitional work, therefore, remains to
be done in the cases yet to be determined.....